Considerations for Policymakers Regarding Involuntary Commitment for Substance Use Disorders

Overview

With fatal drug overdoses nearly tripling in the United States between 1999 and 2014,1 policymakers and others are urgently struggling to implement new solutions to curb this crisis. Various forms of civil commitment laws have been in place to protect individuals with a mental health disorder from hurting themselves or causing harm to someone else. These laws allow the involuntary commitment of an individual by the courts contingent upon the presentation of substantial and reliable evidence of potential harm. For individuals with severe substance use disorder, several states are now considering involuntary commitment laws for the first time or proposing changes to existing laws that would remove barriers to make commitment less difficult.2-5 In at least two of these states, new involuntary commitment policies specifically apply to opioid use.6,7

The treatment gap—the difference between the need for and the utilization of treatment—for substance use disorder in the United States stems from stigma, lack of available effective treatment services and the inability of some individuals with substance use disorder to seek treatment voluntarily. Relatives and loved ones of an individual with a substance use disorder often feel helpless and disempowered when that individual is unable, due to an impaired brain, to make the rational decision to undergo and complete addiction treatment. Situations can escalate to the point where relatives and loved ones feel unsafe or are afraid that the individual with the substance use disorder is at great risk for overdose and/or death. Involuntary commitment laws for substance use disorder might be a way to initiate the treatment these individuals need to avoid death and ultimately re-establish productive and healthy lives. This view is counter-balanced, according to some, by the need to protect the privacy and freedoms of individuals with substance use disorder. For those who emphasize this point, unless a crime has been committed, treatment should always remain a choice—even if the ability to choose is compromised.

This report describes the current status of involuntary commitment laws in the United States to the best of our knowledge and, more importantly, sheds light on several considerations for policymakers and others regarding such laws. Few research studies have been conducted to systematically gather the viewpoints of stakeholders regarding these laws or to assess their short- and long-term impacts. Certainly this is a fertile area for more research, but, while we wait for those studies to reveal an evidence base, we must think carefully and sensibly about how these laws can protect freedoms and at the same time promote health and safety.

The Current Status of Involuntary Commitment Laws

To the best of our knowledge, 37 states and the District of Columbia (DC) have laws in place that allow for the involuntary commitment of individuals with a "substance use disorder," "alcoholism" or both.8 However, in most states, these laws are seldom used, and many families, physicians and local judges are unaware of the option. An analysis performed in 2015 showed that about 40 percent of states with civil commitment provisions for substance use either never or rarely utilize these laws.9 A judge might be reluctant to commit an individual to treatment without robust precedent set by previous case decisions. Involuntary commitment laws also vary greatly in terms of who can petition the court to involuntarily commit an individual to treatment (e.g., a relative, treating physician, psychologist), how difficult it is to get a petition approved, how long an individual can be committed (from one day to one year) and what type of treatment is mandated (e.g., inpatient, outpatient, not specified).8,9

As Figure 1 shows, five of the 38 states (including DC) specifically include "substance abuse" and "alcoholism" in the statutory definition of mental illness or disorder, making the commitment of individuals with substance use issues the same as the commitment of individuals with psychiatric disorders. The other 33 states have separate provisions for the involuntary commitment of individuals with substance use disorders and alcoholism. This latter policy strategy is intended to prevent criminal defendants who committed a crime while under the influence from being able to plead an insanity defense. Thirteen states do not allow involuntary commitment at all for individuals with substance use disorders.

Important Questions for Consideration

What evidence of potential harm is necessary to involuntarily commit an individual with a substance use disorder?

States vary on requirements to involuntarily commit an individual with a substance use disorder.8 Commonly required is an evaluation of the individual by a physician or chief medical officer of the treatment facility prior to commitment and a certificate from the physician accompanying the petition indicating that the individual needs intensive treatment. Some states accept statements from psychologists, psychiatrists, physician assistants or addiction counselors, rather than a physician. A few states require documentation that the individual had previously refused admission into an accessible and affordable voluntary addiction treatment program, or that the individual was recently admitted for emergency care.

State laws also vary widely regarding who can petition the court to get an individual involuntarily committed to drug and alcohol addiction treatment. Most states allow a spouse, guardian, relative, medical professional or administrator of the treatment facility to petition the court for involuntary commitment. However, some states will allow a friend or any responsible person to petition, and in at least one state, police officers are allowed to do so.

Many believe involuntary commitment should be an option only for those with severe substance use disorder who pose a grave risk to themselves or others. However, Charlotte Wethington, a mother who lost her son to overdose and went on to spearhead the involuntary commitment law in Kentucky known as Casey's Law, says such stipulations are not needed. She said the reality is that a civil commitment requires a concerted effort on the part of the person petitioning the court, and that it is generally pursued only as a last resort—after the disorder and risk have clearly grown severe and grave.

"Families who have filed a Casey's Law petition have done so only in desperate situations, after multiple overdoses and the loss of home, job, children, car, insurance, self-esteem and hope," Ms. Wethington said. "The only thing left to lose is their loved one's life. That is the right the family is trying to protect—their loved one's right to live."

For what length of time should an individual with a substance use disorder be involuntarily committed to treatment?

A criticism of some current civil commitment laws is that the length of stay for individuals with a substance use disorder is insufficient. Some assert that effective treatment for severe substance use disorder must last at least 90 days.10 States vary on how long an individual must be civilly committed. The most recently available data shows that roughly a third of the states with involuntary commitment allow for a maximum period of 30 days or even less. Several states allow an individual to remain committed beyond the maximum period if the court orders that additional treatment is necessary. Only one state, Kentucky, permits an individual to be involuntarily committed to treatment for up to a year.8

What kind of treatment would be most effective in situations where an individual is involuntarily committed?

The National Institute on Drug Abuse advises that the type of treatment administered must be tailored to the individual.10 The majority of opioid and other drug users misuse multiple substances11-15 and also have co-occurring mental health conditions.16 For those reasons, treatment must be comprehensive and not rely solely on medications or any one therapy.

At the Hazelden Betty Ford Foundation, widely regarded as a leader in addiction treatment, the emphasis is on evidence-based treatments that encourage longer-term engagement, especially for those with severe substance use disorder. For example, the Foundation's influential treatment framework for opioid addiction—the Comprehensive Opioid Response with Twelve Steps or COR-12™—utilizes certain medications in combination with other evidence-based practices like Twelve Step Facilitation, Cognitive-Behavioral Therapy and Motivational Interviewing.

Medications are used to decrease cravings and stabilize patients so that they participate in treatment long enough to get established in long-term recovery. Treatment is also individualized to address both substance use and mental health concerns.

Generally speaking, addiction is like other chronic illnesses in that the sooner it is recognized and the longer it is treated, the better the chances of recovery.

People with severe substance use disorder are often recommended residential treatment that can ultimately transition, or step down, to outpatient treatment and other lower levels of care. Such determinations are made by professionals based on criteria established by the American Society of Addiction Medicine.17

Quality addiction treatment can be hard to locate in rural areas, and difficult to fund for some who are constrained by financial considerations. However, as of this writing, public and private insurance coverage for substance use disorder has expanded in recent years, greatly improving access.18

What happens after treatment?

Continued treatment after release from one's mandated committal is not required under current civil commitment laws. After the maximum period of "detention" ends, and if the court does not order additional treatment, individuals are released. For example, without further court intervention, an individual who has been civilly committed to treatment in California can leave two weeks after arriving.8 Decreases in drug tolerance can occur during the period of time in which people are in treatment and abstinent from all drug use. This loss of tolerance might increase the risk of overdose if individuals begin to use upon re-entering their previous living environment. The ideal situation would be to maintain a connection to long-term care, including Twelve Step programs, to ensure continuous support and monitoring of the individual's health and relapse risk. It should be noted that this issue is not specific to the topic of civil commitment laws but more general to addiction treatment.

Do parents already have the right to involuntarily commit their minor children to addiction treatment?

In the United States, parents and legal guardians can involuntarily commit their child under the age of 18 to an addiction treatment program without a court order. However, once young people who are in treatment against their will turn 18, they are able to leave. In the eyes of the law, individuals of legal age are able to make their own treatment decisions, although most parents do not consider their responsibility for their child's well-being to stop on the child's 18th birthday. For parents, the ability to petition the court and commit an adult to treatment might be a way of continuing a treatment process that began when their child was still a minor.

Will involuntary commitment to treatment result in different outcomes than if the person voluntarily undergoes treatment?

There are many situations in which an individual might have legal pressures placed on them that lead to substance use treatment. National substance use treatment admissions data from 2014 show that one-third of all people admitted were referred to treatment by the court/criminal justice system.12 Civil commitment is just one type of compulsory treatment, where the individual is forced into treatment by a legal order rather than the individual choosing treatment voluntarily, possibly as an alternative to imprisonment.

Little research exists on the efficacy of civil commitment laws for substance abuse. However, many researchers have studied the effectiveness of coerced treatment in general or of compulsory treatment of substance-using criminal offenders. Unfortunately, the results of studies on the effectiveness of mandated treatment are inconsistent. Two systematic scientific literature reviews revealed that studies on mandated treatment are fraught with methodological problems.19,20 However, a research-based guide published by the National Institute on Drug Abuse states that individuals coerced into treatment stay in treatment longer and do just as well or better than their peers who are not under legal pressures.10

Addiction treatment effectiveness is a function of many factors besides whether or not it is compulsory, including but not limited to the severity of disease, number of prior treatment episodes, presence of comorbid psychiatric conditions, length of stay and therapeutic alliance. Many have argued the conceptualization of addiction treatment as a one-time event is misguided because the chronic, relapsing nature of addiction requires a system of care to address the long-term nature and complexity of the disorder.21

Bright and Martire19 suggest that policymakers who propose and implement any kind of coerced treatment have an obligation to provide evidence of its effectiveness. Existing involuntary commitment laws must be evaluated with sound methodology to determine whether they are an effective tool in the effort to confront America's addiction crisis.

Is there a way to make involuntary commitment laws less threatening to civil rights?

As with psychiatric civil commitments, there are privacy issues to consider with involuntary commitment for substance use treatment. For example, documentation indicating an individual was involuntarily committed might show up on permanent records in some states. These types of records could make it difficult for people in recovery to find employment, further their education or access health care.

All involuntary commitment laws ensure certain rights to the individual being committed, such as the right to an attorney and the right to petition for a writ of habeas corpus (evidence of the reason for the commitment).8 Many laws also guarantee involuntarily committed individuals a copy of the petition, the right to be present during their hearing and the right to continue communication with family and friends. However, civil commitment laws are not consistent about who can petition the court to commit individuals against their will. Laws should guarantee that those who are judging if an individual is a danger to themselves or others are addiction experts or have extensive knowledge of the individual, their substance use and any related health issues.

How can we better emphasize that privacy protections are in place for addiction treatment just like any other health care service?

It is worth noting that addiction treatment providers are required, like all health care providers, to safeguard the medical information of their clients, according to the provisions of the Health Insurance Portability and Accountability Act (HIPAA).22 As of this writing, they also must adhere to the heightened patient privacy requirements of a regulation known as 42 CFR Part 2.23

Would it be possible to gain formal consent from an individual for involuntary commitment that might be necessary at a later date?

The severity of a substance use disorder can wax and wane over time, even in the absence of formal treatment. Although drug use can alter one's state of mind, individuals with substance use disorder experience extended periods of sobriety and autonomy. It is possible that during these periods an individual might realize that commitment to drug treatment might be necessary at some point in the future—after a relapse perhaps. This possibility has not been discussed to our knowledge in the literature around civil commitment laws. To resolve ethical ambiguity surrounding involuntary commitment for substance use, policymakers might consider implementing mechanisms that allow an individual to formally give consent for "involuntary commitment" during these periods, similar to power-of-attorney documents.

Is the current addiction treatment system adequate for handling an influx of involuntarily committed individuals?

Substance use treatment centers, hospitals and detox facilities in the United States might not currently have the resources or capacity to handle the additional patients that could result from an increased utilization of involuntary commitment laws. Already in some states, when privately run treatment centers are full, individuals who are civilly committed are sent to more basic programs housed in prisons. Holding people against their will is not justifiable if the treatment they receive is ineffective and lacks evidence-based strategies.

Ultimately, the substance use problem in the United States will not be solved if more resources are not dedicated to the treatment infrastructure. In order for involuntary commitment laws to be implemented as intended, the availability of effective and affordable treatment programs with qualified professionals needs to expand.

Insights and Perspectives

"At first glance, involuntary commitment appears to be an excessive response, but the neurobiology of addiction reveals that individuals with this disease have little ability to fully recognize the problem and can be driven to continue drug use, even when it puts their life at risk."

"Intravenous use of opioids, especially within the current 'market,' can lead to the pursuit or inadvertent use of extremely powerful and lethal agents like fentanyl. Death by overdose is highly likely in such cases." "Families, friends and others need an alternative, a definitive option; sometimes it's necessary to force treatment when lives are at risk."

"Involuntary commitment is used carefully, but regularly, to save lives and prevent harm from life-threatening mental illness. It's time we do the same for life-threatening addictions—all of them, not just opioids."

"Eighty-five percent of those in need of treatment for substance use disorder do not recognize they have this disease. They do not seek treatment and often continue life-threatening behaviors. We can't stand by and watch more people die without proper care and treatment. We need to intervene in extreme cases to pursue treatment, even when it is against the individual's wishes."

"More study on this important topic is needed. Our involuntary commitment laws are inconsistent and lack established best practices and robust research. It makes sense to consider in the most severe cases of addiction, but I'd like to see it resourced and studied a lot more as we move forward—with the same vigor we've funded and studied drug courts, for example."

Charlotte Wethington, recovery advocate and the initiator of Casey's Law, a model involuntary commitment law in Kentucky

"With substance use disorder, especially opioid use disorder, people are a danger to themselves because every use could be the last one. It is a matter of playing Russian roulette. Time is of the essence. This is not like waiting for a person to go from the first to the fourth stage of addiction. With opioids, the danger is now!"

"People who are severely addicted to opioids will go to any length to get the drug their brain is demanding. When they are without the drug, they are in a state of deprivation, as if they were starving to death."

"A person must be alive to recover. We must do whatever it takes to ensure recovery remains possible."

"Involuntary commitment laws don't just help initiate the care some people need to stay alive. They also help people stick with the care. Some do enter treatment voluntarily in a moment of clarity, but those same people can also leave voluntarily, and often they do. That's one reason we see some who end up going to treatment multiple times before they're able to sustain recovery. Recovery is NOT a matter of 'getting it.' It's a matter of healing the brain, which takes time. Involuntary commitment laws can help us keep people in treatment for the length of time needed."

"If a person with a substance use disorder were thinking with a healthy brain, there would be no question about choosing treatment. People who are concerned with civil liberties more than people's lives are under the false assumption that people with severe substance use disorder are capable of rational decisions regarding their illness. The fact, according to decades of research on the brain, is that they are not. That's why so many people are coerced into treatment already—by the criminal justice system, employers or loved ones. Involuntary commitment laws just provide another tool to help us reach those who cannot be reached by other means."

"Individuals usually are upset about an involuntary commitment order initially, but the many I have spoken with after treatment are grateful that someone intervened before it was too late. They often say, '… otherwise I would be dead.'"

With fatal drug overdoses nearly tripling in the US between 1999 and 2014, policymakers are struggling to implement new solutions.

General Assembly of Pennsylvania. (2017). SB710: Amending Title 42 (Judiciary and Judicial Procedure) of the Pennsylvania Consolidated Statutes, in court-ordered involuntary treatment.

New Jersey State Assembly. (2016). A1099: Provides for involuntary commitment to treatment for substance use disorders.

Alabama State Senate. (2017). Bill Number SB390: Substance abuse, involuntary commitment of individuals for assessment, treatment, and stabilization, protective custody by law enforcement under certain conditions.

General Assembly of Maryland. (2017). HB1009: Health-Standards for involuntary admissions and petitions for emergency evaluation-Modification.

New Hampshire General Court. (2017). SB220: Relative to the definition of mental illness for purposes of mental health services.

Washington State Senate. (2017). SB5811: Expanding use of the involuntary treatment act to combat heroin abuse.

National Alliance for Model State Drug Laws. (2016). Involuntary commitment for individuals with a substance use disorder or alcoholism.

Christopher, P. P., Pinals, D. A., Stayton, T., Sanders, K., Blumberg, L. (2015). Nature and utilization of civil commitment for substance abuse in the United States. Journal of the American Academy of Psychiatry and the Law, 43(3):313-320.

National Institute on Drug Abuse. (2012). Principles of drug addiction treatment: A research-based guide. Rockville, MD: National Institutes of Health.

Bright, D.A., & Martire, K.A. (2013). Does coerced treatment of substance-using offenders lead to improvements in substance use and recidivism? A review of the treatment efficacy literature. Australian Psychologist. 48(1), 69-81.

Klag, S., O'Callaghan, F., & Creed, P. (2005). The use of legal coercion in the treatment of substance abusers: An overview and critical analysis of thirty years of research. Substance Use and Misuse, 40(12), 1777-1795.

The Hazelden Betty Ford Foundation is a force of healing and hope for individuals, families and
communities affected by addiction to alcohol and other drugs. It is the nation's largest
nonprofit treatment provider, with a legacy that began in 1949 and includes the 1982 founding
of the Betty Ford Center. With 17 sites in California, Minnesota, Oregon, Illinois, New York,
Florida, Massachusetts, Colorado and Texas, the Foundation offers prevention and recovery
solutions nationwide and across the entire continuum of care for youth and adults.